STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MCGINLEY REAL ESTATE DEVELOPMENT COMPANY, LLC,

Petitioner,

vs.

DEPARTMENT OF REVENUE,

Respondent.

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) Case Nos. 11-0465

) 11-1137

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RECOMMENDED ORDER OF DISMISSAL

Pursuant to notice to all parties, a final hearing was commenced in this case by video conference on April 6, 2011, with sites in Tallahassee and Orlando, Florida, before Administrative Law Judge R. Bruce McKibben of the Division of Administrative Hearings. As more fully set forth below, the hearing became moot.

HISTORY OF THE CASE

In October 2010, Respondent advised Petitioner that the Department of Revenue had not received Petitioner's sales and use tax returns for 2007, 2008, and 2009. Petitioner ultimately filed amended verified petitions which were forwarded to the Division of Administrative Hearings ("DOAH") so that a formal administrative hearing could be conducted.

At the commencement of the final hearing, counsel for the Department provided an opening statement indicating that the issues in the pending consolidated petitions were moot. After hearing the arguments of counsel, it appears there are no issues remaining for consideration by the undersigned and that this file should be closed. The following Findings of Fact are set forth as the basis for closing the DOAH file in this matter.

FINDINGS OF FACT

1. On September 30, 2010, Petitioner submitted an online application for a tax registration as a new business entity.

2. Respondent began the process of creating an internal "account" for Petitioner on October 1, 2010. On October 2, 2010, Respondent's database system created a delinquency notice advising Petitioner that sales and use tax returns for calendar years 2007, 2008, and 2009 had not been received.

3. On October 4, 2010, Respondent received an envelope from Petitioner containing sales and use tax returns for calendar years 2007, 2008, 2009, and 2010, as well as Petitioner's signed Tax Amnesty Agreement. No remittance accompanied the tax returns (or the remittance check was misplaced), so the Department's system generated a billing notice to Petitioner dated December 10, 2010, and a Notice of Final Assessment dated January 25, 2011.

   
   

4. Petitioner advised Respondent that a check had been sent along with the tax returns. Discussions between the parties ensued, and Petitioner was asked to provide a replacement check. On or about March 11, 2011, Respondent received a replacement payment from Petitioner.

5. Petitioner, by way of his replacement check, paid the Department the sum of one thousand eighty-nine dollars and forty-three cents ($1,089.43) in full settlement of all amounts due and owing under Petitioner's sales and use tax returns for calendar years 2007, 2008, 2009, and, although not included in the initial petitions, 2010.

6. Respondent accepted the payment made by Petitioner in full settlement of the sales and use taxes owed for the years in question. Petitioner is not liable for any further penalties, interest, or other payments on the aforementioned tax returns.

RECOMMENDATION

Based on the foregoing Findings of Fact, it is RECOMMENDED that the petitions for administrative hearing

in this case be dismissed, as there are no further disputed issues of material fact.

DONE AND ENTERED this 15th day of April, 2011, in Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2011.

COPIES FURNISHED:

Lisa Vickers, Executive Director Department of Revenue

The Carlton Building, Room 104

501 South Calhoun Street Tallahassee, Florida 32399-0100

Marshall Stranburg, General Counsel Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street Post Office Box 6668

Tallahassee, Florida 32314-6668

Patrick John McGinley, Esquire

Law Office of Patrick John McGinley, P.A. 2265 Lee Road, Suite 100

Winter Park, Florida 32789

John Mika, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 11-001137

Orders for Case No: 11-001137